Charbonneau v. MacRury

The plaintiff's son and intestate, aged three years, was struck and killed by the defendant Colin's automobile, driven by his minor son, the defendant Elwood. The latter was seventeen years of age and duly licensed. At the close of the plaintiff's evidence, a nonsuit was granted as to Colin. The claim against Elwood was submitted to the jury.

The trial judge charged the jury that the standard by which the defendant's care should be measured was that "of the average person of ordinary prudence acting under like circumstances and conditions." Upon the suggestion of the defense counsel that a minor should not be held to the same degree of care as an adult, the trial judge made the following supplemental statement to the jury: "During the course of my instructions to you I told you that the standard by which care on the part of the defendant should be measured would be that of the average person of ordinary prudence acting under like circumstances and conditions. I should like to modify that to this extent: That in judging the conduct of the defendant, it appearing that he is a minor of seventeen or so years of age ... his conduct should be judged according to the average conduct of persons of his age and experience." The plaintiff objected to this jury instruction.

The jury returned a verdict in favor of the defendant. The plaintiff appealed.